16 Fla. L. Weekly Supp. 854a
Online Reference: FLWSUPP 169GIBBS
Insurance — Personal injury protection — Med Pay — Insurer that paid benefits from Med Pay coverage after receipt of demand letter was not required to pay interest, penalty, and postage
MARK PIERCE CHIROPRACTIC CLINIC, P.A., (As assignee of DEBRA GIBBS), Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2008-SC-008377, Division H. July 6, 2009. Charles Cofer, Judge. Counsel: D. Scott Craig, for Plaintiff. James B. Eubanks, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE, came to be heard on April 30, 2009, on Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Summary Judgment. Present before the Court appeared counsel for Defendant, James B. Eubanks, Esquire, with counsel for Plaintiff, D. Scott Craig, Esquire. Having considered the arguments of counsel, all relevant authority, and being otherwise fully advised, the Court makes the following findings of fact and conclusions of law.
1. The insured, Debra Gibbs, had an existing insurance contract with United Services Automobile Association, (“USAA”) which provided for $10,000.00 in PIP benefits and $10,000.00 in Medical Payment benefits.
2. Plaintiff, MARK PIERCE CHIROPRACTIC CLINIC, P.A., (As assignee of DEBRA GIBBS), treated the insured and subsequently brought suit against Defendant, USAA, alleging Defendant’s refusal to pay penalty, interest and postage in association with overdue Med Pay benefits.
3. On August 20, 2008 Plaintiff sent a demand letter to Defendant seeking payment for two CPT codes performed on a single date of service and additional penalty, interest and postage of $5.32.
4. Defendant received Plaintiff’s demand letter on August 27, 2008 and also exhausted PIP benefits on the same day.
5. On September 23, 2008 Defendant responded to Plaintiff’s demand letter stating, “We are unable to process your request as the Personal Injury Protection benefits for this patient and claim have been exhausted. At this time, we still have Medical Payments benefits available.”
6. In an effort to resolve the matter, Defendant subsequently made timely payment for the services at issue, with the remaining Medical Payment benefits. These payments were made at a reduced rate, as Defendant’s Medical Payments Coverage section permits Defendant to utilize the fee schedule contained in the statutory Florida No-Fault Law. However, Defendant did not pay the requested penalty, interest and postage.
7. Florida Statute §627.736(10) states, in pertinent part:
If within 30 days after receipt of notice by the insurer, the overdue claim specified in the notice is paid by the insurer together with applicable interest and a penalty of 10 percent of the overdue amount paid by the insurer, subject to a maximum penalty of $250, no action may be brought against the insurer.
8. Defendant asserted that when paying Medical Payment benefits, the Florida Statute §627.736(10) requirement to pay penalty, interest and postage was inapplicable. This Court agrees with the Defendant’s position.
9. The Legislature specifically removed Med Pay from the PIP Statute in 2001, and the existing insurance contract does not address such penalties. However, Plaintiff urged this Court to require the Defendant to pay penalty, interest and postage when making Med Pay payments in response to a pre-suit demand letter.
10. Specifically, the Plaintiff argued that the contractual requirement of a pre-suit demand letter for the payment of Med Pay benefits, should avail the Plaintiff of the right to collect the same penalties and interest that are enumerated in the above mentioned Florida Statute §627.736(10), governing pre-suit PIP demand letters.
11. Additionally, Plaintiff urged this Court to find Defendant’s policy unconscionable, in its utilizing the fee schedule, but not requiring interest be paid on overdue bills; in requiring a pre-suit demand letter, but not requiring Defendant to pay interest or to reimburse mailing costs; and in not defining when a payment made under the Med Pay coverage is overdue. Plaintiff urged this Court to rule that Defendant owes interest and mailing costs for paying the disputed billing in response to the demand letter. This Court is not persuaded and refuses to create language that would amount to rewriting the insurance contract and the PIP statute.
12. As such, Defendant’s payment of benefits from Med Pay coverage was not subject to Florida Statute §627.736 and therefore, was not subject to interest, penalty and postage, as alleged by Plaintiff.
IT IS THEREFORE ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is hereby Granted and Plaintiff’s Motion for Summary Judgment is hereby Denied.
